Abbas Tabrizian v. U.S. Attorney General , 180 F. App'x 130 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-14489 MAY 23, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
Agency No. A96-110-814
ABBAS TABRIZIAN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 23, 2006)
Before DUBINA, CARNES and PRYOR, Circuit Judges.
PER CURIAM:
Petitioner Abbas Tabrizian, a native and citizen of Iran, petitions for review
of the Board of Immigration Appeals’s (“BIA”) final order, affirming without
opinion the immigration judge’s (“IJ”) denial of his motion to continue the
removal hearing under the Immigration and Naturalization Act (“INA”), INA
§ 237(a)(1)(B), 241; 8 U.S.C. § 1227(a)(1)(B), 1231; 8 C.F.R. § 1003.29.
In March 2003, the Immigration and Naturalization Service issued Tabrizian
a notice to appear because he had exceeded the amount of time that he was
permitted to stay in the United States. Tabrizian submitted a motion, with
supporting documentation, to continue the proceedings because he had a pending
labor certification, and he was the beneficiary of an I-130 petition, which was filed
by his U.S. citizen brother.1 After granting multiple continuances of the removal
hearing, in February 2004, the IJ denied Tabrizian’s motion for a continuance for
additional attorney preparation time and found Tabrizian removable. The BIA
affirmed the IJ’s decision without opinion.
On appeal, Tabrizian argues that we should re-examine our decision in Zafar
v. U.S. Att’y Gen., 426 F.3d 1330, 1334-35 (11th Cir. 2005). Zafar held that
because the petitioners were not statutorily eligible for adjustment to resident
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Tabrizian notes that the I-130 petition filed on his behalf by his U.S. citizen brother acts
to grandfather him under INA § 245(i). However, he has abandoned any arguments that he may
have raised below regarding any error the IJ made by not continuing his removal proceedings based
on the pending I-130 petition itself because he only argues on appeal that the continuance should
have been granted due to his pending labor certification. Mendoza v. U.S. Att’y Gen., 327 F.3d
1283, 1286 n.3 (11th Cir. 2003).
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status, having failed to show immediate visa availability, there was no abuse of
discretion in denying a continuance. Tabrizian notes that we did not address a
Seventh Circuit opinion, Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004), which
reversed a removal order in which the IJ did not give sound reasons for denying a
motion for a continuance in similar circumstances.
We review the IJ’s decision in this case, not the BIA’s, because the BIA
affirmed the IJ’s decision without opinion, thereby making the IJ’s decision the
final agency determination. See 8 C.F.R. § 1003.1(e)(4); Mendoza v. U.S. Att’y
Gen., 327 F.3d 1283, 1284 (11th Cir. 2003).
An IJ has discretion to grant a continuance in an immigration proceeding
“for good cause shown.” 8 C.F.R. § 1003.29. We have jurisdiction to review the
IJ’s discretionary decision to deny Tabrizian’s motion for a continuance for an
abuse of discretion. Zafar, 426 F.3d at 1334-35. As we explained in Zafar:
Section 245(i) of the INA, 8 U.S.C. § 1255(i)(1), permits
a certain class of aliens who were otherwise ineligible to
adjust their temporary resident status in the United States
to pay a penalty fee for adjusting their status to that of a
“permanent resident” and be considered “grandfathered”
into the United States, if he is the “beneficiary” of an
application for labor certification that was properly filed
by April 30, 2001, and was “approvable when filed.”
INA § 245(i)(1), 8 C.F.R. § 245.10(a)(1)(i)(B).
“Approvable when filed means that, as of the date of the
filing,” the application for labor certification was
“properly filed, meritorious in fact, and non-frivolous . . .
.” 8 C.F.R. § 245.10(a)(3). Once the Attorney General
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receives the application for adjustment of status and the
appropriate fee, he “may” adjust the status if the alien “is
eligible to receive an immigrant visa and is admissible,”
and “an immigrant visa is immediately available to the
alien at the time the application is filed.” INA 245(i)(2),
8 U.S.C. § 1255(i)(2). An immigrant visa cannot,
however, be issued to the alien until the labor
certification is approved. INA § 203(b)(3)(C), 8 U.S.C.
§ 1182(a)(5).
Id. at 1335-36. We held that an IJ does not abuse his discretion by denying a
continuance to petitioners who can show only a “speculative possibility that . . .
they may receive” a labor certification in the future because such a showing does
not fulfill the “immediately available” visa petition requirement for adjustment of
status under INA § 245(i); 8 U.S.C. § 1255(i). Id. at 1336.
The facts in this case are identical in relevant respects to the facts in Zafar.
426 F.3d at 1332-33. Like the petitioners in Zafar, Tabrizian’s labor certification
is currently under review by the U.S. Department of Labor (“DOL”). Zafar’s
holding, that there is no abuse of discretion for an IJ to deny a continuance based
on a pending labor certification, mirrors this IJ’s decision not to continue the
proceedings pending an approval that may or may not happen. See Zafar, 426 F.3d
1335-36. In fact, Tabrizian admits that Zafar is controlling law, arguing only that
Zafar should be reconsidered in light of the Seventh Circuit’s decision in Subhan.
Nevertheless, “[our] law . . . is emphatic that only the Supreme Court or [our] court
sitting en banc can judicially overrule a prior panel decision.” Walker v. Southern
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Co. Servs., Inc., 279 F.3d 1289, 1293 (11th Cir. 2002) (quotation omitted). But
even if one panel could overrule another, the panel that decided Zafar clearly was
aware of Subhan because that case is cited in Zafar, even though it was not
addressed at length. Zafar, 426 F.3d at 1335.
Furthermore, the Seventh Circuit’s decision in Subhan is distinguishable. In
Subhan, the IJ granted the non-citizen two continuances in an attempt to allow the
pending labor certification to be processed by the DOL, but after the second
continuance expired, the IJ summarily denied a request for a third. Subhan, 383
F.3d at 593. The Seventh Circuit held that because the IJ gave no reason for the
denial, it was erroneous. Id. at 595. Here, however, the IJ gave a reason for
denying Tabrizian’s motion for a continuance by stating that the “approval of a
labor certification is the net equivalent of a certificate of marriage between a [non-
citizen] and a U.S. citizen,” but “the absence of either eliminates any basis for
continuance.” As the Subhan court noted, had the IJ given almost any reason for
the denial of Subhan’s request, the denial would have satisfied the law. Subhan,
383 F.3d at 593-94. Here, the IJ gave a reason based on his understanding of the
state of the law regarding continuances and thus satisfied Subhan.
Accordingly, for the foregoing reasons, we deny the petition for review.
PETITION DENIED.
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